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    • Feb16Fri

      Transcript of Comments at CIJA Panel

      Combating Hate Speech and Antisemitism – Legal Perspectives February 13, 2018 February 16, 2018 D. Jared Brown


      UJA/CIJA – Law Society of Ontario
      Panel discussion of Law Society requirement for a Statement of Principles
      D. Jared Brown – transcript of comments


      As a profession charged with safeguarding the rights and freedoms of all persons, the public is watching when our own freedoms are implicated.

      I’ve spoken out publicly against this measure by the Law Society. It is not something that was easy or without considerable risk.

      However, as with Professor Pardy, I immediately saw an effort by the Regulator to compel the speech and opinion of the membership.

      This struck me as particularly problematic.

      This is a serious infringement of a fundamental freedom.

      How serious?

      Well, the courts have regularly affirmed the fundamental nature of the guarantee of freedom of expression. Justice McIntyre in Dolphin Delivery (RWDSU v. Dolphin Delivery Ltd. 1986 SCR – p.583) stated that:

       “Freedom of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social, and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends on its maintenance and protection.”

      In National Bank of Canada and Retail Clerks (1984), the Supreme Court did not simply refer to compelled speech and opinion as an infringement of freedom of expression, no, Justice Beetz said it is totalitarian and as such alien to the tradition of free nations like Canada.

      Compelled speech is a particularly pernicious form of speech control because it compels persons to speak words and opinions against their free will and conscience.

      No one can remain silent.

      It is for this reason that there is a reassuring lack of jurisprudence regarding compelled speech in Canada.

      You won’t find much in the leading Constitutional Law books devoted to compelled speech.

      It is totalitarian and therefore ought to rarely be found reasonable or demonstrably justified by the courts.

      Since speaking publicly on this issue, I’ve heard the Regulator and proponents of the measure state some variation of the following arguments:

      1)      The measure is not compelled speech

      2)      The measure is only asking members to affirm existing obligations

      3)      It is a reasonable infringement on members’ rights of expression. Let’s briefly examine each of these arguments.

      Is this Compelled speech?

      It’s clear on the face of the wording that it requires members to prepare a statement promoting certain values.

      Both preparing a statement and promoting are almost certainly types of protected expression involving both words and actions.

      Compelled speech is where persons are compelled to speak words or opinions that may not be their own. A compelled speech requirement is one whose effect is to put a particular message in the mouths of an individual.

      Is the Law Society simply compelling conduct as some have said?

      Well no, we are not being asked to affirm our existing obligations to abide by Human Rights laws, and to abide by the Rules of Professional Conduct.

      The measure is called a Statement of Principles, not a Statement of Conduct and the Rules of Professional Conduct have not been amended to include these principles and values.

      The members are being asked to go further and promote a set of values chosen by the Law Society, and subject to the Law Society’s definition of those values.

      Justice Sharpe of the Ontario Court of Appeal clearly stated in the case of E.T. v. Hamilton Wentworth District School Board (2017 para. 40):

      “Equality, inclusivity and acceptance of difference are values, not facts…”.

      Neither the Law Society, nor any of the proponents of the measure have identified the sections of the Human Rights Code, or the Rules of Professional Conduct that constitute the existing obligation to promote Diversity, Equality, and Inclusivity.

      This is a net new obligation.

      So can this compelled speech measure be demonstrably justifiable, or reasonable with regard to a section 1 Oakes test, or Dorre’ as some have argued?

      Well, knowing that compelled speech is totalitarian, I would expect the measure would have to be justified with a fairly robust Oakes analysis or reasonableness argument.

      This would likely involve some analysis of the evidence used in the underlying report to Convocation which I would encourage everyone to read.

      Particularly the part where less than 6% of licensees actually bothered to respond to the survey on which it is based.

      So when have the courts permitted compelled speech?

      The short answer appears to be never.

      From what I’ve seen of the caselaw, an Oakes test is not easily satisfied in a pure compelled speech situation.

      What has happened is the courts have narrowed what actually constitutes totalitarian compelled speech.

      If you look to the Supreme Court decision in Lavigne v. O.P.S.E.U. 1991, it was stated under the section 1 analysis:

      “If a law does not really deprive one of the ability to speak one’s mind or does not effectively associate one with a message with which one disagrees, it is difficult to see how one’s right to pursue truth, participate in the community, and fulfill oneself is denied”.

      This concept also underpinned, how the Supreme Court saved the loyalty oath to the Queen in citizenship ceremonies in the McAteer case (v. Attorney General of Canada, 2013 paras 79/80).

      Because the individuals in Levigne and McAteer had the opportunity to disavow the compelled expression and opinion, and they wouldn’t be publicly identified as being associated with the message with which they did not agree, the court determined that the forced expression was saved under section 1.

      The measure before us today has the Regulator compelling all members to state that they have an existing obligation to promote a new set of values.

      These new values have been selected by the Regulator as being of primary importance above and beyond the Rules of Professional Conduct.

      These values are to be defined by the Regulator.

      All members must now publicly ascribe to and promote these values, and no member can disavow them.

      It seems to me this is compelled speech of the totalitarian sort.